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[2015] ZAFSHC 14
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Makhubu Civils CC v Icon Construction Pty (Ltd) and Others (4866/2014) [2015] ZAFSHC 14 (29 January 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 4866/2014
In
the matter between:-
MAKHUBU
CIVILS CC
….............................................................................................
Applicant
and
ICON
CONSTRUCTION PTY (LTD)
….................................................................
1
st
Respondent
THE
DIHLABENG LOCAL
MUNICIPALITY
.....................................................
2
nd
Respondent
PRO–CARE
CONTRACTORS (PTY)
LTD
............................................................
3
rd
Respondent
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
11
DECEMBER 2014
DELIVERED
ON:
29
JANUARY 2015
INTRODUCTION
[1]
This was an urgent interdict to grant the applicant leave to
intervene as a party in the review application, instituted by the
first respondent against the second respondent. T
his
matter was heard on 11 December 2014. I delivered a ruling the
following day, which was 12 December 2014, dismissing the application
with costs. I was subsequently requested to provide reasons for my
ruling. These are those reasons. There was no appearance for
the
third respondent.
The
urgent application against the three respondents was for:
“
1.
That the Applicant’s noncompliance with the rules of court in
relation to time periods and service, be and is hereby condoned,
with
the application to be heard as an urgent application in terms of Rule
6 (12).
2.
That the applicant be is hereby given leave to intervene as a party
in the application brought in the above matter.
3.
That a rule nisi be issued, calling upon the Respondents to show
cause on Thursday the 22
nd
of January 2015 at 9h30 or so
soon thereafter as Counsel may be heard, why the order should not be
granted in the following terms:
(a)
That the order granted by this court on 21 November 2014 in terms
whereof the tender in relation to Public Contract BW37/2014,
in
relation to the construction of Reservoirs, Pipelines and Appurtenant
Works at Fouriesburg/Masheng, be and is hereby rescinded;
(b)
That the First and Second Respondents, and only the in the event of
opposition by the Third Respondent, the Third Respondent,
jointly and
severally, the one paying the other to be absolved, are directed to
pay the Applicant’s costs in this application;
(4)
That pending the outcome of this application, the order referred to
in 3 (a) above be stayed and the Second Respondent is interdicted
and
restrained from awarding the tender to the First Respondent or any
other party;
(5)
Further and alternative relief”.
FACTS
[2]
The second respondent awarded a tender to the third respondent.
There were proceedings instituted by the First respondent under
the
above case number for a variation order granted by this Court. In
such proceedings this Court granted an order on 21
November 2014 in
terms whereof the award of a public contract BW37/2014, in relation
to the construction of reservoirs, pipelines
and apartment works at
Fourisburg/Mashaeng to the third respondent, was reviewed and set
aside.
[3]
The order granted on 21 November 2014 directed that the tender be
awarded to the first respondent, subject to the proviso that
such
order was to be suspended for a period of ten days. The purpose of
granting such a suspension was to afford the applicant
an opportunity
to approach the Court with a view of placing representations before
this Court with regard to the order. This was
allegedly due to the
fact that the applicant had submitted a bid in relation to the tender
and was the second highest scoring bidder
in the bid evaluation by
consulting engineers appointed by the second respondent.
[4]
It was stated in the applicant’s affidavit that the applicant
sought to intervene in these proceedings to place information
before
this court with regard to the period of the validity of tenders, in
which regard it will be submitted that the portion of
the order
relating to the award of the tender to the first respondent was
erroneously granted, in the period of the validity of
tenders had
expired. The applicant further stated that it was no longer possible
for an award of the tender by the first respondent
by the second
respondent to be made.
ISSUES
[5]
The issue in this application was whether or not the applicant
satisfied the requirements of an interim interdict, made out
a case
on a balance of probabilities, to be granted the relief sought.
SUBMISSIONS
[
6]
It was submitted on behalf of the applicant that the applicant was
joined as a party to the original application. The applicant
sought
to rescind the order of the 21 November 2014. The said order should
have been served on the applicant. The purpose of the
urgent
application was to give the applicant an opportunity to be heard. The
only option that the applicant had was concomitant
application for
rescission. The applicant should be joined as a party to exercise its
right. The judgment was erroneously granted.
Counsel for
the applicant further submitted that this matter could not be
referred back to second respondent for consideration.
[7]
It was submitted on behalf of the first respondent that the
applicant was served with the order on 26 November 2014. Counsel
for
the first respondent argued that it was wrong of the applicant to
apply to this court to have the order of 21 November 2014
rescinded
because he believed that the order was wrong. Counsel for the first
respondent argued that this was not a legitimate
process that could
be followed. The reason being that a party may consider a judgment to
be wrong or “erroneously granted”
was of little
consequence. He further stated that what this term means was that
under the rules of court was a procedural irregularity
and no mistake
in respect of the order itself.
[8]
Counsel for the second respondent argued that the applicant alleged
in his affidavit that he did not take issue with the relief
sought
and granted to the first respondent in terms whereof the award of the
tender was reviewed and set aside The applicant further
said that due
to the expiry of the period of the tenders, it was not appropriate
for an order to have been granted that the tender
be awarded to the
first respondent. It was counsel for the second respondent’s
argument that the applicant’s allegation
is not supported by
any reasons or facts.
THE
LAW
[9]
The
test to be applied in an urgent interdict is to establish on the
papers before the court a
prima
facie
right, which may though established is open to doubt, (see CB Prest,
Law
and Practice of Interdicts
,
Juta
1996
Page 57).
[10]
The
requirements for an urgent interdict are: a well-grounded
apprehension of irreparable harm to the applicant if the interim
relief is not granted and he ultimately succeeds in establishing the
right; and the balance of convenience favours the granting
of interim
relief and the applicant has no alternative remedy. For details
consideration of this requirement see
LF
Boshoff Investment (Pty) Ltd v Cape Town Municipality
1969
(2) SA 256
(LPD)
at 267 A-F.
[11]
Rule 6 (12)
states that:
“
(12)
(a) In urgent applications the court or a judge may dispense with the
forms and service provided for in these rules and may
dispose of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
these rules) as to it seems meet.
(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this sub rule, the applicant shall
set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not
be afforded
substantial redress at a hearing in due course.”
[12]
The mere existence of urgency does not justify an applicant not using
Form 2 (a), but the applicant may deviate from the form
to the extent
justified by the exigencies of the case by, for example, using
shortened time periods, advance nomination of the
date of hearing,
omitting notice to the registrar and adaptation of the wording:
See:
Republicanise
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972
(1) SA 773
(A)
at 782A-G.
[13]
The following is what the court said in
Caledon
Street Restaurant CC;
“
It
is incumbent on the applicant to persuade the court that the
non-compliance with the rules and the extent thereof were justified
on the grounds of urgency. The intent of the rules is that a
modification thereof by the applicant is permissible only in
the
respects and to the extent that is necessary in the circumstances.
The applicant will have to demonstrate sufficient
loss or damage were
he to be compelled to rely solely or substantially on the normal
procedure. The court is enjoined by
rule 6 (12) to dispose of
an urgent matter by procedures “which shall as far as
practicable be in terms of these rules”.
That obligation
must of necessity be discharged by way of the exercise of a judicial
discretion as to the attitude of the court
concerning which
deviations it will tolerate in a specific case. Practitioners
must accordingly again be reminded that the
phrase “which shall
as far as practicable be in terms of these rules” must not be
treated as
pro
non scripto
.
The mere existence of some urgency cannot therefore necessarily
justify an applicant not using Form 2 (a) of the First Schedule
to
the rules. If a deviation is to be permitted, the extent
thereof will depend on the circumstances of the case. The
principle remains operative even if what the applicant is seeking in
the first instance, is merely a
rule
nisi
without interim relief.”
[14]
In
Shapiro
v SA Recording Rights Association Ltd
2008 (4)
SA 145
W Gautschi AJ (as he then was) at p 152, in Minister of Local
Development White J held that an applicant for intervention has to
satisfy the court that:
“
(i)
He has a direct and substantial interest in the matter of the
litigation which could be prejudiced by the judgment of the court
…
ii)
the application is made seriously and is not frivolous, and that the
allegations made by the applicant constitute a prima facie
case or
defence…….”
[15]
The requirements for the rescission of judgment are similar to the
ones of removal of bar, in that the applicant must give:
(1)
a satisfactory explanation for the delay;
(2)
the application must be
bona fide
and not simply to delay;
(3)
a
bona fide
defence must be established which is not patently
unfounded and is based on facts, if proved, constitute a valid
defence.
Nathan (Pty) Ltd v All Metals (Pty) Ltd
1961 (1) SA 297
at 300.
[16]
In
Chetty
v Law Society, Transvaal
1985,
(2) SA 756
(AD) Miller JA, on behalf of the unanimous
Court,
dealt with the term “sufficient cause” or “good
cause” when used in the context of an application
for
rescission of a Judgement. At 765 D-E he said:
“
For
obvious reasons a party showing no prospect of success on the merits
will fail in an application for rescission of a default
judgement
against him, no matter how reasonable and convincing the explanation
of his default. An ordered judicial process would
be negated if, on
the other hand, a party who could offer no explanation of his default
other than his disdain of rules was nevertheless
permitted to have a
judgement against him rescinded on the grounds that he had reasonable
prospects of success on merits.”
APPLICATION
OF THE LAW TO THE FACTS
[17]
I am of the considered view that there is no urgency in this matter.
The applicant dragged its feet after it was served with
the order on
26 November 2014. The applicant only approached this court on 10
December 2014. The applicant had been dilatory in
bringing this
application.
[18]
It is trite
that urgent applications are regulated by Rule 6 (5) and Rule (6)
(12) of the Rules of Court. In terms of Rule 6 (5)
(a) applications,
other than the ones brought
ex
parte,
shall
be brought on Notice of Motion as near as may be in accordance with
Form 2 (a) of the First Schedule to the Rules. Rule
6 (5) (b)
provides that in the Notice the applicant shall set forth a day, not
less than five days after service thereof on the
respondent, on or
before which such respondent is required to notify the applicant, in
writing, whether he intends to oppose such
application, and shall
further state that if no such notification is given, the application
will be set down for hearing on a stated
day, not being less than 10
days after the service of the Notice on the respondent.
The other
issue of lack of urgency regarding this matter was that the
notice of motion was not as far as possible in compliance
with form 2
(a) of Schedule 1 to the rules. The notice of motion
deviated
from form 2(a) by failing to stipulate time periods for the filing of
notices and papers, suitably abridged in accordance
with the urgency
of the matter. I am of the view that the applicant misconstrued the
degree of urgency and should have given more
notice and indicated
time periods for filing of papers and defending of the matter than it
had to the respondents. (See Caledon
Street
Restaurants CC v D’ Aviera
[1998]
JOL 1832
(SE).
[19]
The short notice may have prejudiced the respondents’ right to
have more time to prepare for an adequate defence. This
matter was
not dismissed simply because the applicant did not satisfy the
requirements of an interdict but because the applicant
made of the procedure relating to matters of urgency, was a misuse,
indeed an abuse, of the process of the court and it was why
the
application was dismissed.
There
must be a marked degree of urgency before it will be justifiable not
to use Form 2 (a). See:
Mangala
v Mangala
1967
(2) SA 415(E).
[20]
There are material difficulties regarding the relief sought by the
applicant. In its notice of motion, the applicant sought
rescission
of the entire order. However in its founding affidavit, the
applicant,
stated
that the reason for the urgent application by the applicant was to
place information before this Court with regard
to the period of the
validity of tenders, in which regard the portion of the order
relating to the award of the tender to the first
respondent, was
erroneously granted, in that the period of the validity of all
tenders had expired. There are material differences
within the relief
sought in that the applicant stated that it did not take issue with
the relief sought and granted to the first
respondent in terms of
which the award of the tender was reviewed and set aside. At the same
time the applicant stated that it
was not appropriate for an order to
have been granted that the tender be awarded to the first respondent.
The applicant also asked
this court to award the contract to it not
to the first respondent, and it relied on section 8 of PAJA. I am of
the considered
view that this court was not empowered to award the
contract to the applicant or any other party. This was not the matter
before
this court. This court could only deal with what was
before it, which was an application to intervene in the review
application.
I was unable to understand exactly which relief
the applicant wanted this court to grant.
[21]
The applicant sought leave to intervene so that he could obtain a
rule nisi
to rescind part and or a portion of the order granted on 21 November
2014. The intention was to rescind the order because the applicant
believed that the order was wrong. The fact that the applicant
considered the order to be wrong was of little consequence. This
meant this was a procedural irregularity and not mistake of the order
itself (see:
Colyn v Tiger Food
Industry LTD /a Meadow Feed Mills Cape
2003 (6) SA 1
(SCA) (
I
was referred to this case by the first respondent’s counsel).
[22]
I am of the view that the applicant did not give a satisfactory and
bona fide
explanation why it delayed in launching this
application, when it did on an urgent basis. Neither had the
applicant shown “good
cause” why part and or a portion of
the order of 21 November 2014 should be rescinded. I am not convinced
that the applicant’s
allegations constituted a
prima facie
case or defence.
[23]
In making application to intervene the test is whether or not a
party has a ‘direct and substantial interest ‘in
the
subject matter of the action. A mere financial interest is an
indirect interest and may not require joinder of a person
having such
interest (see
Leibowitz v Schwartz
1974 (2) SA 661
(T)). Different
views exist whether or not the court has discretion once it is shown
that the applicant was the necessary
party in such proceedings. In
one instance it was stated that once this has been shown the court
proceeds to determine the matter
“
in
accordance with the requirements of convenience and common sense”.
This view was rejected in other cases. However it was
subsequently stated that the court has such a discretion (see
Harding
v Basson
1995 (4) SA 449
(C) at
501H-I).
[24]
My view was that the applicant’s interest in intervening was
mainly motivated by financial interest as the applicant’s
goal
was to have the tender not awarded to the first respondent. It was
argued on behalf of the applicant that the court should
award the
contract to the applicant under section 8 of Promotion of
Administrative Justice Act (PAJA). The court may grant application
to
intervene which will include direct and substantial interest of the
applicant which is not simply a financial interest. (
Hartland
Implements (Emds) BPK v Emal Eiendomme BK
2002
(3) SA 653
(NC) at 663E-H.)
[25]
I am of the view that the matter
was not of sufficient urgency to justify the applicant approaching
the court on the notice provided
for in the notice of motion.
My view was that, to the
extent that I may have a discretion to grant application to
intervene, the facts of this matter did not
qualify, for me to
exercise such a discretion in the applicant’s favour.
[26]
In light of the preceding I am not convinced that the applicant
satisfied all the requirements of an interim interdict.
The
applicant’s right, whatever it may be, had to be balanced with
the respondents’ right to have the relief sought
granted.
Applying to court to have the order of 21 November 2014 rescinded
either wholly or a portion thereof, was not the only
alternative that
the applicant had. Since the applicant’s concern seemed to be
of a procedural error in the order and not
an error in the order
itself, the applicant’s other alternative, if granted leave to
intervene, could have been an appeal
against the order. The applicant
could also have asked that the matter be remitted back to the second
respondent for re- consideration.
I am of the view that the
balances of the requirements for the grant of an interim interdict
are not satisfied. The
applicant failed to make out a case on a
balance of probabilities for the relief sought. It is my view that
the application should
fail.
[27]
I accordingly make the following order:
27.1 The application
is dismissed with costs.
_________________
E.
K. TSATSI, AJ
On
behalf of the applicant: Adv. S. Grobler
Instructed
by:
Lovius
Block
BLOEMFONTEIN
On
behalf of first respondent: Adv.
Instructed
by:
Hannes
Peyper Attorneys
BLOEMFONTEIN
On
behalf of the second respondent: Adv.
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN